Opinion
C.A. No. 01A-06-011 JTV
Submitted: October 7, 2002
Decided: January 31, 2003
Upon Consideration of Claimant's Appeal From Decision of Industrial Accident Board REVERSED and REMANDED
Walt F. Schmittinger, Esq., Dover, Delaware. Attorney for Claimant.
David J. Lyons, Esq., Dover, Delaware. Attorney for Employer.
OPINION
This appeal from a decision of the Industrial Accident Board ("Board") requires the court to consider whether the Board correctly determined the "average work week" of a temporary nurse staffing agency where none of the nursing staff have any regular hours. The appellant, Elizabeth Baggett ("claimant"), a licensed practical nurse ("LPN"), was injured in her first day of work with the agency. The Board calculated an "average work week" simply by averaging the hours worked by all LPN's over a 6 month period. For the reasons which follow, the Board's decision will be reversed and the case remanded.
FACTS
The facts, which appear to be undisputed, are as follows. Elizabeth Baggett began working with First State Staffing, Inc. ("First State" or "employer") on or about October 27, 2000. At the time, she was working two part-time jobs, one for Visiting Nurse Association and one for Capitol Healthcare Services. She hoped to replace her two part-time positions with one position with First State. She had 14 years of nursing experience.
When the claimant first met with the scheduler for First State, she informed the scheduler that she was available on a full-time basis. The scheduler responded "we love that." The claimant testified that she would not have taken the position if it been only part-time. The claimant applied for the position with First State because she liked the flexibility that a temporary staffing agency afforded. If she did not wish to take an assignment, she knew that she could turn it down. When she filled out her application for employment, she signed a "For Hire Agreement" which stated that she understood that First State could not promise any certain number of hours of work and that she was hired on an as-needed/per diem basis.
First State provides registered nurses ("RN"), LPN's and certified nursing assistants ("CNA") to 35 facilities on the Delmarva Peninsula. It competes with 11 other temporary nurse staffing agencies in the area. It has 20 to 25 LPN's on staff at any one time. When a call comes in from a facility that needs a nurse, the scheduler calls nurses on the list until one is found that will take the shift. Nurses may turn down a shift for any reason. First State does not promise any number of hours to the nurses because it cannot predict the demand. In addition, a hospital can cancel a request for nursing staff at the last minute.
When the claimant was hired, the owner of First State told her that if she already had a full-time job, she should keep it because First State could not promise even one hour of work. The owner indicated there were plenty of assignments, because nurses are in high demand, but she could not promise them to any one nurse.
First State places nurses 24 hours a day, seven days a week. The RN's, LPN's and CNA's all work exclusively within their area of certification. The nurses generally work 16 to 20 hours per week. On occasion they work 40 hours in a week.
The claimant's first work assignment was a 7:00 p.m. to 7:00 a.m. shift at Harbor Health Care. She was also scheduled for another 12 hour shift the next night. At 6:45 a.m. on her initial shift assignment, however, she injured her back, causing disability.
The bookkeeper for First State calculated an overall average of hours worked by LPN's over the previous year. The average was 17.14 hours per week. On this basis, the bookkeeper testified that an LPN could not expect to average more than eighteen hours per week. The records used in the calculation indicated that some LPN's occasionally worked 40 hours in one week, and occasionally over 40 hours per week, for which they received overtime. For the six months from May through October 2000, the average of all hours worked by LPN's was 17.56 hours per week. The Board adopted 17.56 hours per week as the average work week and calculated the claimant's weekly wage as $316.08 (17.56 hours X $18 per hour). It awarded the corresponding compensation rate of $210.72 per week for total disability for the period from October 28, 2000 to February 6, 2001.
STANDARD OF REVIEW
The scope of review for appeal of a Board decision is limited to examining the record for errors of law and determining whether substantial evidence is present on the record to support the Board's findings of fact and conclusions of law. "Substantial evidence" is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." On appeal, the court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." The court is simply reviewing the case to determine if the evidence is legally adequate to support the agency's factual findings.
Robinson v. Metal Masters, Inc., 2000 Del. Super. LEXIS 264 (Del.Super. 2000); see Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981); see Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
ILC of Dover, Inc. v. Kelley, 1999 Del. Super. LEXIS 573, at *3 (Del.Super. 1999).
DISCUSSION
Under 19 Del. C. § 2302(b), the wages of an hourly rate employee are calculated by multiplying the employee's hourly rate times the "average work week of the employee's employer at the time of the accident." The employee's "weekly wage," therefore, is based not on the number of hours actually worked by the employee, but on the number of hours in the employer's "average work week." The application of the formula becomes difficult when the employer has no readily discernible "average work week."
The claimant contends that under Furrowh v. Abacus Corp. she should be compensated based upon an average work week of 40 hours since she was capable of working that number of hours. First State contends that Furrowh is distinguishable and that the Board correctly decided that 17.56 hours was its average work week.
559 A.2d 1258 (Del. 1989).
In Furrowh, the claimant applied for a full-time position as a security guard with Abacus Corporation. Since all full-time positions were filled, she accepted a part-time position. She was injured on the job about four months after being hired. At the time, about 20% of the security guards worked full-time and about 80% worked part-time. The Board calculated Abacus' average work week by averaging the hours of all security guards, part-time and full-time. The resulting number was 23.46 hours per week. The claimant had been working an average of 28.26 hours per week. In rejecting the Board's approach, the court emphasized that the goal of 19 Del. C. § 2302(b) was to compensate a disabled employee for his or her loss of earning capacity. The earning capacity of a person who is capable of working full-time, the court reasoned, was that of a full-time worker. Therefore, in Ms. Furrowh's case, the average work week for purposes of calculating her workers' compensation was held to be the average work week of the security guards who worked full-time. A part-time employee should receive compensation based upon part-time wages, the court further stated, "only if the employment itself or his relation to it is inherently a part-time one and likely to remain so."
Id. at 1259-60.
Id. at 1260-61 (citing 2 Larson Workmen's Compensation Law § 60.00 (1987), now cited in the updated 2002 edition as 5 Larson's Workers' Compensation § 93.00).
The Board distinguished Furrowh on the grounds that in that case the employer had full-time employees, hired as such, whereas in this case every nurse is a per diem employee with no regular hours. The Board concluded that the claimant's employment was "inherently" part-time because the employer did not promise a nurse any particular number of hours of work and did not actually provide 40 hours per week to any LPN on a regular basis; that since First State does not employ any full-time LPN's, benefits cannot be based on a 40 hour work week; and that the claimant had no reasonable expectation that she would be working 40 hours per week. For these reasons, the Board concluded that the claimant's compensation should be based on the average of hours worked in a week by all LPN's.
The Board's conclusion that the claimant's employment is "inherently a part-time one" is not supported by substantial evidence. The claimant's status is distinguishable from typical part-time workers in that the record establishes that there were occasions when First State LPN's did work a full 40 hour week, and this claimant was fully capable of doing so. Because the opportunity exists to work 40 hours per week, at least sometimes, it cannot be said that the employment itself is "inherently a part-time one."
In addition, the Board's method of determining the employer's average work week is not supported by substantial evidence. Its approach, which is essentially the same as the one rejected by the court in Furrowh, does not arrive at the employer's average work week in any meaningful sense. It is simply a mathematical calculation of the average hours worked by all employees. In this sense it may be said to be the average work week of the employees as a group, but it is not the employer's average work week for its employees. Since the employer did allow employees to work 40 hours per week and since some did, at least on occasion, my ruling is that the employer's average work week for calculating the claimant's wages is 40 hours. Any lesser number of hours does not compensate the claimant for her loss of earning capacity, which is the goal of 19 Del. C. § 2302(b).
Howell v. Supermarkets General Corp., 340 A.2d 833, 836 (Del. 1975).
In reaching its decision, the Board relied upon the cases of State v. Waterman, Spicer v. State, and Pinson v. Thriftway. Waterman involved a school food service employee who worked 36 weeks a year. The issue was whether her compensation should be based upon a 36 week year or a 52 week year. The court held that a judgment concerning the claimant's loss of earning capacity could not be made unless it was known whether the claimant expected to work at some other seasonal job during the 16 weeks that she did not work as a food service employee. It remanded the case for additional evidence and findings. Spicer involved a school cafeteria employee who worked 15 hours per week. All of the cafeteria employees worked a 15 hour week, and the claimant took the job because she wanted to work only those limited, part-time hours. Pinson involved a part-time cashier at a supermarket. All cashiers were part-time. The court upheld a Board decision that the claimant, who was a high school student, had no earning expectation beyond that of a part-time cashier. Spicer and Pinson were decided under the "exceptional circumstances" provision of 19 Del. C. § 2302(b) which the Delaware Supreme Court has since decided does not apply to hourly rate employees. All of these cases are readily distinguishable because the record in this case establishes that some of the LPN's did work 40 hours a week, at least on occasion, and that the claimant was capable of doing so.
1997 Del. Super. LEXIS 271 (Del.Super. 1997).
1991 Del. Super. LEXIS 326 (Del.Super. 1991).
1994 Del. Super. LEXIS 29 (Del.Super. 1994).
Rubick v. Security Instrument Corp., 766 A.2d 15 (2000). The "exceptional circumstances" provision of 19 Del. C. § 2302(b) reads as follows: "If, because of exceptional causes, such method of computation does not ascertain fairly the earnings of an employee, then the weekly wages shall be based on the average earnings for 6 months of an average employee of the same or most similar employment." Under Rubick, this provision applies only to employees whose wages are fixed by output, not those who are paid an hourly rate. Prior to Rubick, some cases applied it to hourly rate employees.
CROSS-APPEAL
The employer has cross-appealed, contending that Board should have granted a motion to dismiss Faye Passwaters, the individual owner of the corporate employer, from the case. The Board's decision indicates that the motion to dismiss would be scheduled for a separate hearing at a later date. That issue can be addressed by the Board during the proceedings on remand.
CONCLUSION
The decision of the Board is reversed and the case is remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.